STATE OF NEW JERSEY v. MARQUISE BRUNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-946-05T4A-0946-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARQUISE BRUNSON,

Defendant-Appellant.

___________________________

 

Submitted September 11, 2006 - Decided September 18, 2006

Before Judges S.L. Reisner, Seltzer and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-12-2303.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Marquise Brunson, was convicted by a jury of aggravated assault, N.J.S.A. 2C:12-1b(1), unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and was sentenced to ten years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The conviction was based on an incident in which defendant fired a gun at a group of men who had gathered outside the apartment building where he was visiting an acquaintance. We affirmed his conviction on direct appeal, State v. Brunson, A-2191-01T4 (App. Div. 2003). He subsequently filed a petition for post-conviction relief (PCR), which Judge Neafsey denied in an oral opinion, placed on the record on August 12, 2005.

On this appeal from the denial of his PCR petition, defendant raises the following contentions:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.

A. Trial And Appellate Counsel Failed To Raise The Issue Regarding Possible Impermissible Communication And Consequent Taint Between An Excused Juror And The Other Jurors.

B. Trial Counsel Failed To Properly Investigate The Case And Prepare For Trial.

Having reviewed the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm for the reasons stated in Judge Neafsey's cogent opinion. We add only the following comments.

Immediately after the judge's initial instructions to the jury and counsel's opening statements, one juror indicated to the judge that he realized he and defendant frequented the same local barber shop and he was not sure that he could be impartial. This juror was excused with consent of both counsel. We find no merit in defendant's argument that his trial counsel was ineffective in failing to ask the trial judge to question this juror as to whether he had communicated with other jurors about his passing acquaintance with the defendant. The colloquy between the trial judge and the juror did not suggest that this juror knew anything negative about defendant or that he was likely to have discussed defendant with other jurors. In fact, the record before us provides no basis to conclude that this juror would have had an opportunity to discuss the defendant with other jurors. See State v. R.D., 169 N.J. 551 (2001).

Defendant also contends that his counsel should have tracked down and interviewed certain witnesses, but he produced no evidence as to what those witnesses would have said if they had been called to testify. Speculation is an insufficient basis for a claim of ineffective assistance. State v. Fritz, 105 N.J. 42, 64 (1987).

 
Affirmed.

(continued)

(continued)

4

A-0946-05T4

 

September 18, 2006